### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00487- CV

Carr oll Ned McElwrath, App ellant

v. Valerie McElwrath, Appellee

F ROM TH E DISTRI CT COURT O F MI LAM CO UNTY, 20TH JUDICI AL DISTRICT NO. CV35,6 24, H ONO RAB LE JO HN Y OUNGB LOO D, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Carroll Ned McElwra th appea ls from the trial court’s judgme nt denying his petition for bill of revie w following the trial court’s issuance of a qualified domestic rela tions order (QDRO)

conce rning division of Ned’ s fede ral civil service retire ment benef its. Ned challeng ed the order on 1 the due proce ss g round t hat he h ad not been served with citation pursuant to the provisi ons of t he
Texas Fa mily Code. See Tex. Fa

m. Code § 9.102(c)

. For the rea sons that follow we reve rse the trial court’s judg ment and re mand this case to the tr ial court for trial on the merits.

BACK GR OUND Ned and Valer ie were divorced in 1996 in the 82nd J udicial District Court of F alls County , Texas. I n the divorce decr ee, Valer ie was awa rded “one- half (1⁄2 ) o f t h e co mmunity

Be cause the par

ties have the same last name , we r efe r to them by their first name s. 1retire ment ear ned throug h Ned McElwrath’s employ ment with the U.S. Postal Service and to be set forth in a Qualified Domest ic Relations Orde r.” No QDRO was ever signe d by the Fa lls County district court. I n October 2007, Valer ie’s attorney sent Ned a letter encl o s i n g a proposed QDRO, which Ned declined to sign. Ned retire d in 2009. On May 20, 2010, Valer ie’s attorney wrote a letter
to the trial court in Cause No. 27,231 in the 20th J udicial District Court of Milam County , enclosing

a proposed QDRO and asking the court to sign it. That court signe d the order on J une 2, 2010. Ned contends that he first lear ned that the order had b ee n signe d on the Fr iday afte r Thanksg iving in November 2010 when he rec eived a letter from the United States Offic e of Personnel Manag ement (OPM) informing him that it had proce ssed Valer ie’s claim for a portion of his r etireme nt be nefits

acc ording to c ourt order

. I n Fe bruar y 2013, Ned filed his pe tition for bill of revie w, seeking to se t aside the Q DRO signe d in Cause No. 27,231, which the trial court de nied. The trial c ourt enter ed fi ndings of fac t and conclusions of law, and at Ned’ s reque st, additional finding s of fac t and conclusions of law . This appea l followed.

STANDARD OF REVIEW We revie w a trial court’s denial of a bill of revie w for an abuse of discretion. Morris

v. O’Neal , 464 S.W .3d 801, 806 (Tex. App.—Houston [14t h Dist.] 2015, no pet.). A trial court abuses its discretion when it acts in an arbitr ar y o r u n re as onable manner without ref ere nce to any g uiding principles or rules. See Enbridge Pipelines ( E. Tex.) L.P. v. Avinger Timber, L L C , 386 S.W .3d 256, 262 (Tex. 2012). “I n an appea l from a bench trial, the trial court’s finding s of fac t ‘have the same for ce and dignity as a jury ’s verdic t upon questions.’” Seasha Pools, Inc.

v. Hardister , 391 S.W .3d 635, 639 (Tex. App.—Austin 2012, no pet.) (quoting Anderson v. City of

2Seve n Points , 806 S.W .2d 791, 794 (Tex. 1991)). Uncha lleng ed finding s of fac t are binding unless

t h er e is no evidenc e to support the finding or the contra ry is established as a mat t er o f l aw . McG alliard v. Kuhlmann , 722 S.W .2d 694, 696 (Tex. 1986); McAle er v. McAle er , 394 S.W .3d 613, 620 (Tex. App.—Houston [1s t Dist.] 2012, no pet.).

We revie w a trial court’s conclusions of law de novo and will uphold the conclusions if the judgme nt can b e s u s t ai n ed on any leg al theory supported by the evidenc e. BMC Software Belgium, N.V. v

. Marchand , 83 S.W .3d 789, 794 (Tex. 2002) ; Hawkins v. Ehler , 100 S.W .3d 534, 539 (Tex. App.—For

t Worth 2003, no pet.). Although a trial court’s conclusions of law may not be challeng ed for fac tual insufficiency , we may revie w t he lega l conclusions drawn from the fac ts to deter mine their corr ectne ss. City of A ustin v

. W hittingt on , 384 S.W .3d 766, 779 n.10 (Tex. 2012); BMC Software , 83 S.W .3d at 794. We ma y reve rse a trial court’s judgme nt only if its conclusions

are err oneous as a matter of law. Condom S en s e, In c. v. Alshalabi , 390 S.W .3d 734, 749 (Tex. App.—Dallas 2012, no pet.); Thomas v. Cornyn , 71 S.W

. 3 d 4 7 3 , 4 8 5 (Tex. App.—Austin 2002, no pet.). Ned’ s issues also involve matters of statutory construction, which is a question of law that we revie w de novo. See Texas Mun. Power Agenc y v. Public Util. Comm’ n , 253 S.W .3d 184, 192 (Tex. 2007); State v. Shumake , 199 S.W .3d 279, 284 (Tex. 2006)

. Our primary conce rn is the
express statutory lang uag e. See Galbraith Eng’g Consult ants, Inc. v. Pochuc ha , 290 S.W .3d 863, 867 (Tex. 2009). We apply the plain meaning of the text unless a differ ent meaning is supplied by leg islative definition or is appar ent from the contex t, or t he plain meaning leads to absurd results. Marks v . St. Luke’s Episcopal Hosp. , 319 S.W .3d 658, 663 (Tex. 2010).

3DISCUSSIO N A bill of revie w is an equitable proce eding broug ht by a party seeking to se t a side a
p ri o r j u d gm ent that is no longe r subject to challeng e by a motion for new trial or appea l. R o s s

v. National Ct r
. for the Emp’t of the Disabled , 197 S.W .3d 795, 797 (Tex. 2006) (per curia m); Caldwell v. Barnes , 154 S.W .3d 93, 96 (Tex. 2004). Tra ditionally , a bill of revie w re quires proof of three elements: (1) a meritorious defe nse to the underly ing cause of action, (2) which the plaintiff

was preve nted from making by the fra ud, acc ident or wrong ful act of the opposing party or officia l mistake, (3) unmix ed with any fault o r n egl i gen ce b y the movant. Ross , 197 S.W .3d at 797; Caldwell , 154 S.W .3d at 96. Howeve r, a bill of re view plaintiff c laiming no se rvice is relieved of the obliga tion to prove the first t wo el em ents beca use a judgme nt rende red without service is constitutionally infirm reg ardle ss of whether the plaintiff possesses a defe nse he was preve nted from making

. Peralta v. Heights Med. Ctr ., Inc. , 485 U.S

. 8 0 , 8 4 –85 (1988); Caldwell , 154 S.W .3d at 96–97. Nonethele ss, a bill of revie w plaintiff alleg ing that he was not serve d is still require d to prove the third bill of re view ele ment—that the judg ment was re ndere d unmix ed with any fault

or neg lige nce of his own. Caldwell , 1 5 4 S

. W

. 3 d at 97. This third element is conclusively established if the plaintiff can prove that he was never serve d with proce ss. Id. “An individual who is not serve d with proce ss cannot be at fau l t o r neg lige nt in allowing a defa ult judgme nt to be
enter ed.” Id. “I n sum, when a plaintiff seeks a bill of revie w based solely on a claim of non-ser vice, the bill of revie w proce dure

. . . must be slightly modified. When a plaintiff claims lack of service , the t rial court should: (1) dispense with any pretria l inquiry into a meritorious defe nse, (2) hold a

4trial, at which the bill of revi ew plaintiff assumes the burden of proving that the plaintiff was not

serve d with proc es s , t h er eby conclusively establishing a lack of fault or neg lige nce in allowing a defa ult judgment to be r ender ed, and ( 3) conditioned upon a n aff irmative finding that the plaintiff

was not serve d, allow the parties to reve rt to their orig inal status as plaintiff and defe ndant with the burden on the orig inal plaintiff to prove his or he r ca se.” Id. at 97–98.

I n his first issue, Ned arg ues that the trial court err ed in denying his bill of revie w beca use he establis h ed t h at he was not serve d with citation in Cause No. 27,231 and is entitled to
set aside the defa

ult QDRO as a matter of law beca use due proce ss prohibits entry of judgme nt without service of citation. Section 9.102(c) of the Family Code require s that a party whose rig hts 2
may be aff

ecte d by a QDRO is entitled to rec eive notice of a petition for QDRO by citation. See Tex. F am. Code § 9.102(c ). The trial court below enter ed finding s of fac t tha t no citation was issued to Ned and that no return of citation or waiver of service of citation was fi l ed in Cause No. 27,231. Valer ie does not challeng e t h es e finding s on appea l, and they are there fore binding unless there is no evidenc e to support them or the opposite is established as a matter of law. See Seasha Pools , 391 S.W .3d at 639. The docket sheet in Cause No. 27,231 contains no entry for issuance, service , or waiver of service of cit at i o n, the QDRO does not rec ite that Ned had been

serve d with citation, and there is nothing else in the rec ord to indicate that citation was ever issued

or serve d. Cf. Phillips v. Parrish , No. 01-96-00822- CV, 1997 Tex. App. L EXI S 4726, at *1 (Tex.

Cause No. 27,231 is sty led I n the Matter of the Marr iag e of Valer ie McElwrath and Carroll 2 Ned McElwra th and in the I n t erest of [C .J .M.] and [K.K.L .M.], Children, and the docket sheet indicates it was filed in 2000. The only rec ords from Cause No. 27,231 included in the appellate rec ord ar e the letter from Valer ie’s counse l to the trial court re questing that it sign the QD RO, the signe d QDRO, and the docket she et. 5App.—Houston [1st Dist.] Aug

. 29, 1 9 9 7 , wr i t denied) (per curia m) (upholding denial of bill of

revie w wher e rec ord in underlying divorce proce eding contained waiver of citation by bill of revie w plaintiff who also admitted actua l notice but did not attend hear ing)

. Fur ther, Ned offe red undisputed testimony that he was not serve d with citati on. I n her briefing , Valer ie states that she “does not have p er s o n al knowledg e of whether or not [Ned] was not serve d with citation prior to entry of the [QDRO] ” but does not offe r any arg ument or cite any evidenc e that she cause d citation
to be issued or attempted to serve Ned with notice by citation. There fore , t h e ap pellate rec ord supports the trial court’s finding that Ned was not serve d with notice by citation, an ex press require ment of the plain lang uag e of section 9.102(c)

. See Tex. Fam. Code § 9

. 1 0 2 (c ); Marks , 319 S.W .3d at 663; Pochuc ha , 290 S.W .3d at 867; cf. Caldwell , 154 S.W .3d at 97 n.3 (whe n rec ord contains return of citation, testimony of plaintiff alone, without corr oborating evide n ce , is insufficient to over come pr esumption of service ).

Although Valer ie does not dispute that Ned was not serve d with citation, she appea rs
to arg ue that no service was necessa ry beca use t here was “ong oing liti g ation” between the parties in 2010 in Cause No. 27,231 prior to the reque st for the QDRO. As evidenc e of ong oing litigation, she cites the letter from her attorney to the trial court and copied to Ned’ s attorney reque sting the trial
court to sign the enclose d QD R O an d ref err ing to a child support hear ing. Be cause both parties 3

wer e befor e the court, Valer ie arg ues, reque sting the QDRO was “tantamount” to Valer ie’s seeking additional relief in pending l i t i g ation. Thus, Valer ie contends that the require ment of section

I n addition, the trial court’s finding s of fact i n clude an unchalleng ed finding that on 3 April 5, 2010, Ned was repr esente d by co unsel in Cause No. 27,231 pending in the 20th J udicial District Court of Milam County

. 69.102(c) does not apply if the reque st for a QDRO is broug ht in pending litigation. We do not find

this arg ument persua sive. Secti o n 9

. 1 02(c) expressly require s notice by citation and contains no exception for a re q u es t for a QDRO filed in ong oing litigation. See Tex. Fam. Code § 9.102(c) ; Marks , 319 S.W .3d at 663; Pochuc ha , 290 S.W .3d at 867. I f the legi slature had intended such an exception, it could have cre at ed one. See Crosstex Energy Servs., L.P. v. Pro Plus, Inc. , 430 S.W .3d 384, 390 (Tex. 2014) (citing Texas L ot t er y C o mm ’n v. Firs t State Bank of DeQue en , 325 S.W .3d 628, 635 (Tex. 2010) (“We presume the L eg islature selec ted lang uag e in a statute with

car e and that ever

y word or phrase was used with a purpose in mind.”) ). Valer ie cites no authority for making such an e x ception, and w e know of none. T o t h e ex tent Valer ie arg ues t hat Ned waived service by citation of her reque st for the QDRO by participa

ting in Cause No. 27,231 prior to the reque st, we are likewise unpersua ded. 4 First, Ned’ s appea

ranc e and participa tion in Cause No. 27,231 are less than clea r from the appellate

rec ord. Moreove r, even assuming Ned participa ted in matters prior to Valer ie’s reque st for entry of the QDRO, there is nothing in the rec ord to ref lect any appea

ranc e or participa tion by Ned betwee n the date of Valer ie’s letter reque sting the QD R O and the signing of the order

. Although the trial
court enter ed an unchalleng ed finding of fac t that Ned was repr esente d by counsel in that cause “on April 5, 2010,” which was prior to the letter reque sting the QDRO, there is no rec ord evidenc e, and Valer ie does not ar g ue, that Ne d appea red or participa ted in any

matter re lated to the QDRO pr ior

There is nothing in the rec ord to indicate, and Val er i e does not arg ue, that 4 Cause No. 27,231 was a transfe r of the orig inal divorce proce eding from Fa lls County so as to rende r service in Cause No. 27,231 unnece ssary . See generally Tex. Fam. Code § § 6

. 4 0 7 , 103.003, 155.201–.301. Rather, the docket sheet ref lects a date of “ Filing ,” sug g esting an orig inal filing in Milam County

requiring service of citation. 7to the entry of the order so as to have waived the service by citation of the reque st for the QDRO

require d by

section 9.102(c ). Nor does Valer ie contend that Ned was provided noti ce and a hear ing before ent ry of the QDRO, an d t h e d o ck et s heet in Cause No. 27,231 does not ref lect any such hear ing. See
In re E.R. , 3 8 5 S

. W

. 3 d 5 52, 559 (Tex. 2012) (at minimum , due proce ss require s notice and opportunity for hear ing appropr iate to the nature o f t h e ca s e) ; cf. In re Marriage of Dixon , No. 12-10-00384- CV, 2011 Tex. App. L EXI S 3952, at *1–3, 8 (Tex. App.—Ty ler May 25, 2011,

no pet.) (mem. op.) (af

firming denial of bill of revie w wher e plaintiff did not rec eive notice of final order but participa ted in hear ing on QDRO and did not prove meritoriou s d ef en s e). I n the letter transmitting the proposed QDRO to the t rial court, whi ch was copied to counsel for Ned, counsel for Valer ie reque sted that the trial court sign the order but made no mention of setting the matter for hear ing. Ned offer ed undis puted t estimony that he did not rec eive notice of t he entry of t he order until late November 2010. Even assuming that Ned had waived service by citation by appea ring in Cause No. 27,231 on other prior matters and tha t no additional service was require d under section 9.102(c) or that such service was also waived by appea ranc e, Ned was nonetheless entitled to notice and an opportunity to voice his objections to entry of the QDRO at a hear ing

. See Tex. Fam. Code § 9.102(c) ; In re K.M.L. , 443 S.W .3d 101, 118–19 (Tex. 2014) (due proce ss rig hts of defe ndant who h as made appea

ranc e are violated when judgme nt is subsequently enter ed without notice of setting and opportunity to voice objections at hear ing even if defen d an t previously waived notice of citation).

8L ack of service conclusively establ i s h ed no fault or neg lige nce on the part of Ned,

the only bill of revie w element Ned was require d to prove. See Ross , 197 S.W .3d at 797 (def endant wh o is not serve d with proce ss is entitled to bill of revie w without further showing ); Caldwe l l , 154 S.W .3d at 97 (proof of non-ser vice conclusively establishes lack of fault on part of bill of revie w plaintiff). Be cause Ned proved he was not serve d with citation, and beca use there is no evidenc e he
appea red or participa ted in the proce eding in any matter conce rning entry of the QDRO—or that there even wa s a hear ing conce rning the order —he could not be at fault or neg lige nt in allowing the QD R O t o b e en tere d. See Tex. Fam. Code § 9.102(c) ; In re K.M.L. , 443 S.W .3d at 118–19;
In re E.R. , 385 S.W .3d at 559; Ross , 197 S.W .3d at 798 (individuals not serve d with proce ss cannot be at fault or neg lige nt in allowing defa ult judgme nt to be enter ed) (citing Caldwell , 154 S.W .3d at 97); cf. Phillips , 1997 Tex. App. L EXI S 4726, at *10. The trial court there fore err ed in denying the bill of revie w. See Ross , 197 S.W .3d at 798; Caldwell , 154 S.W .3d at 97–98 (upon finding that bill of revie w plaintiff was not serve d, trial court should allow parties to reve rt t o o ri gi n al status as plaintiff and defe ndant with burden on orig inal plaintiff to prove case ). We sustain Ned’ s first issue. 5

Be cause Ned’ s first issue is dispositi ve, we do not rea ch his s ec o n d i s sue, in which he 5 challeng es the trial court’s denial of the bill of revie w on the basis that Ned f ailed to use dilig ence in appea ling the entry of the QDRO. See Ross v. National Ctr. f o r t h e E mp ’t of the Disabled , 197 S.W .3d 795, 797 (Tex. 2006) (p er cu riam) (while diligenc e is require d from proper ly serve d parties or those who have appea

red, those not serve d have no duty to act, dilige ntly or otherw ise). L ikewise we do not rea ch his third issue in which he challeng es the trial court’s denial of the bill of revie w on the g round that Ned had unclea n hands based on his actions in Cause No. 27,231. See id. at 798 (holding that appellate court err ed in aff irming denial of bill of revie w on g round of unclea n hands base d on plaintiff’s fa ilure to coope rate with post-judgme nt collection efforts in underly ing defa ult judgme nt beca

use bill of revie w is separ ate suit from underly ing proce eding ). We also need not rea ch Ned’ s fourth issue, in which he challeng es the trial court’s denial of the b i l l of revie w beca use the OPM corr ectly deter mined Valer ie’s portion of the retir em en t benef its. See Peralta v. Heights Med. Ctr., Inc. , 485 U.S. 80, 82 (1988) (holding that it is no answe r that in particula r case 9CONCLUSION Having conclude d that the tr ia l c ourt err ed in denying Ned’ s bill of revie w, we reve rse the trial court’s judgme nt and rema nd to the trial court for trial on the merits. See Ross , 197 S.W .3d at 798; Caldwell , 154 S.W .3d at 97–98.

__________________________________________ Melissa Goodwin, Jus tice
Be fore Chief J ustice Rose, Jus tices Goodwin a nd Bour land
Reverse d and Remande d Filed: Apr il 13, 2016

due proce ss would have led to same result); Caldwell v. Barnes , 154 S.W .3d 93, 97–98 (Tex. 2004) (upon finding t hat b i l l of review plainti ff was not serve d, trial court should allow parties to reve rt to orig inal status as plaintiff and de fenda nt with burden on orig inal plaintiff to prove c ase)

. 10